Decision 2765E – Gompers Preparatory Academy

LA-CE-6531-E

Decision Date: April 30, 2021

Decision Type: PERB Decision

Description:  Respondent Gompers Preparatory Academy (GPA) filed exceptions to a proposed decision issued by an administrative law judge. After PERB’s Office of the General Counsel (OGC) issued a complaint, GPA failed to file its answer by the 20-day deadline in PERB Regulation 32644, subdivision (a). The ALJ assigned to the case issued an Order to Show Cause ordering GPA to show why its failure to timely file an answer to the complaint did not constitute an admission of the truth of the material facts alleged and a waiver of GPA’s affirmative defenses and right to a hearing. On the same day, GPA filed its response to the OSC and a motion for leave to file a late answer, together with a supporting declaration from GPA’s attorney and a copy of the proposed answer. GPA’s failure to timely file its answer was due to the law firm’s sudden shift to telework because of  the COVID-19 pandemic. This resulted in the deadline to file the answer not being calendared and the answer not being filed. The ALJ denied GPA’s motion, finding no good cause to excuse the late filing, and deemed GPA to have admitted the material factual allegations, and to have waived any affirmative defenses and its right to a hearing. GPA sought leave to file an interlocutory appeal with the Board itself, but the ALJ declined to certify the appeal. After the parties briefed the limited legal issues that remained following GPA’s deemed admissions and waiver, the ALJ issued a proposed decision finding that GPA violated EERA and the PEDD.

Disposition:  On appeal the Board found that the reasons GPA’s attorney provided for the late-filed answer were sufficient to constitute good cause due to the COVID-19 pandemic and recently enacted emergency shelter-in-place order.  The law firm had mistakenly failed to calendar the deadline for the answer and did not realize that the answer was not filed until it received the OSC. The Board further found that the 10-day delay in filing the answer, with months until the hearing, would not cause prejudice. Based on these criteria, the late-filed answer should have been accepted. The Board further found that certifying the interlocutory appeal would have been appropriate because the determination of good cause involved the application of a legal standard, declining to file the answer was sufficiently controlling, and an immediate appeal would have materially advanced the resolution of the case by avoiding potential duplicative briefing. The proposed decision was vacated, and the matter was remanded to the Division of Administrative Law.

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Decision Headnotes

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.06000 – De Novo Review; Standard of Review by Board

When resolving exceptions to a proposed decision, the Board applies a de novo standard of review. Under this standard, we review the entire record and are free to make different factual findings and reach different legal conclusions than those in the proposed decision. The Board need not address alleged errors that would not impact the outcome. (p. 11.)

1110.00000 – CASE PROCESSING PROCEDURES; GOOD CAUSE FOR LATE FILING
1110.01000 – In General; Standards

Generally, good cause to excuse a late filing pursuant to PERB Regulation 32136 exists where the delay is of short duration and based on circumstances that were either unanticipated or beyond the party’s control. (p. 12)

1110.00000 – CASE PROCESSING PROCEDURES; GOOD CAUSE FOR LATE FILING
1110.01000 – In General; Standards

A late filing will generally be excused when it has resulted in a short and non-prejudicial delay, and it was the result of either “circumstances beyond the control of the filing party or from excusable misinformation, where the filing party’s explanation was credible on its face or was corroborated by other facts or testimony.” (p. 12)

1110.00000 – CASE PROCESSING PROCEDURES; GOOD CAUSE FOR LATE FILING
1110.01000 – In General; Standards

Good cause is a flexible standard, defined and constrained by considerations of fairness and reasonableness. Consistent with the policy of “not depriv[ing parties] of the opportunity to have their issues heard on the merits due to legal technicalities” a rigid application of the good cause standard is not required. It is appropriate to take the entirety of the circumstances into account in our inquiry – especially in light of the COVID-19 pandemic and the statewide emergency stay-at-home order. (pp. 13-14)

1110.00000 – CASE PROCESSING PROCEDURES; GOOD CAUSE FOR LATE FILING
1110.01000 – In General; Standards

Finding good cause to excuse answer filed 10 days late when attorney for Respondent’s declaration in support of its motion to file a late answer explained that the answer was not timely filed due to “an honest mistake and miscommunication between departments” within the law firm that resulted in a calendaring error. The answer was drafted five days prior to the filing deadline, and Respondent had mistakenly believed that the answer was filed. The mistake and miscommunication were due to staff adjustments to working entirely from home with reduced hours and modified assignments in the first weeks of the stay-at-home order due to the COVID-19 pandemic. The attorney along with some of the staff responsible for calendaring and administrative support struggled with illness and caring for family members, in addition to performing their job duties from home during the beginning of the pandemic. The complaint was issued less than one month after California’s stay-at-home order required all employees deemed “non-essential” to remain at home. The unexpected shift from conducting business in-person to virtually from home caused widespread disruption to business practices. , This explanation was sufficient to establish good cause. (pp. 14-15)

1110.00000 – CASE PROCESSING PROCEDURES; GOOD CAUSE FOR LATE FILING
1110.01000 – In General; Standards

The Board has never adopted a categorical rule that an attorney’s conduct can never constitute good cause to excuse a late filing. While an attorney’s erroneous interpretation of the law or misunderstanding of PERB’s regulations does not normally constitute good cause, there is no categorical bar to finding good cause for an attorney’s honest mistakes. (p. 16)

1110.00000 – CASE PROCESSING PROCEDURES; GOOD CAUSE FOR LATE FILING
1110.01000 – In General; Standards

When respondent provided its answer to the ALJ and Charging Party 10 days after it was originally due, and over three months before the first day of hearing, no prejudice would have resulted from accepting the late-field answer. (p. 17)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.12000 – Interlocutory Appeal

Whether good cause existed to accept a late-filed answer was an appropriate issue for an interlocutory appeal pursuant to PERB Regulation 32200. In order for an ALJ to join in the request and certify the interlocutory appeal to the Board itself, three elements must be found: (a) the issue involved is one of law; (b) the issue involved is controlling in the case; and (c) an immediate appeal will materially advance the resolution of the case. (Ibid.) Because the existence of good cause requires the application of a legal standard, it is an appropriate issue to certify to the Board. Because the ALJ construed the late-filed answer as resulting in the respondent admitting all material factual allegations in the complaint and charge, waiving all affirmative defenses, and waiving its right to a hearing, finding no good cause was sufficiently controlling to warrant an interlocutory appeal. Certifying an interlocutory appeal would have avoided duplicative briefing, so the appeal would have materially advanced the resolution of the case. (p. 18)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.12000 – Interlocutory Appeal

When determining whether to certify an interlocutory appeal to the Board, Board agents should be guided by PERB’s longstanding policy against “depriv[ing parties] of the opportunity to have their issues heard on the merits due to legal technicalities.” (p. 19)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.12000 – Interlocutory Appeal

Certifying an interlocutory appeal would signify to the Board that a critical issue in this case needed immediate resolution. The Board could have expeditiously resolved the issue and returned the case to the ALJ to either order limited briefing on the merits if his Order was affirmed, or setting a hearing if his Order was reversed. (p. 19.)